Citation NR: 9606249
Decision Date: 03/11/96 Archive Date: 03/16/96
DOCKET NO. 92-11 572 ) DATE
)
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On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO) in
Atlanta, Georgia
THE ISSUE
Entitlement to service connection for the cause of the
veteran’s death.
REPRESENTATION
Appellant represented by: Department of Veterans
Service, Georgia
ATTORNEY FOR THE BOARD
Christopher Maynard, Counsel
INTRODUCTION
The veteran had active service from October 1969 to October
1971 and from January 1974 to February 1976. He died in May
1991.
This matter came before the Board of Veterans’ Appeals
(Board) on appeal from a July 1991 rating decision which, in
part, denied service connection for the cause of the
veteran’s death. The Board remanded the claim to the RO in
January 1993, for additional procedural development.
CONTENTIONS OF APPELLANT ON APPEAL
The appellant contends that the veteran’s death was a suicide
caused by depression related to his service-connected post-
traumatic stress disorder (PTSD). The appellant argues that
the veteran was awaiting trial for a hit and run accident
while driving under the influence, the substance abuse being
a symptom of his PTSD, and that the possibility of going to
jail and his fragile psychological state led him to take his
own life by jumping into the Chattahoochee River.
DECISION OF THE BOARD
The Board, in accordance with the provisions of 38 U.S.C.A.
§ 7104 (West 1991), has reviewed and considered all of the
evidence and material of record in the veteran's claims file.
Based on its review of the relevant evidence in this matter,
and for the following reasons and bases, it is the decision
of the Board that the appellant has not met the initial
burden of submitting sufficient evidence to justify a belief
by a fair and impartial individual that she has presented a
well-grounded claim of service connection for the cause of
the veteran’s death.
FINDINGS OF FACT
1. The veteran’s death in May 1991, was due to drowning of
undetermined cause.
2. At the time of death, service connection was in effect
for PTSD, rated 100 percent disabling since July 1987, and
hypertension, rated 20 percent disabling.
3. No competent evidence has been submitted to show that the
veteran’s death was due to disease or injury in service or
caused by a service-connected disability.
4. No competent evidence has been submitted to show that the
service-connected disabilities caused or contributed
substantially or materially in producing the veteran’s death.
CONCLUSION OF LAW
The appellant has not presented evidence of a well-grounded
claim of service connection for the cause of the veteran’s
death. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1137,
1310, 5103, 5107, 7104 (West 1991); 38 C.F.R. §§ 3.102,
3.302, 3.307, 3.309, 3.310, 3.312 (1994).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
Initially, it is noted that the Board remanded the case to
the RO for additional procedural development in January 1993,
to obtain police reports and any other records that may have
been developed in connection with the veteran’s death.
Evidence was received from the appropriate law enforcement
agency and the Board is satisfied that the purpose for the
remand has been satisfied.
The threshold question to be answered is whether the
appellant has presented evidence of a well-grounded claim;
that is, a claim which is plausible. A plausible claim is
one which is meritorious on its own or capable of
substantiation. Murphy v. Derwinski, 1 Vet.App. 78 (1990).
Under the law, the claimant has the initial burden of
submitting evidence sufficient to justify a belief by a fair
and impartial individual that the claim is well grounded.
§ 5107. While the claim need not be conclusive, it must be
accompanied by some evidence; a mere allegation will not
suffice. Tirpak v. Derwinski, 2 Vet.App. 609, 611 (1992).
The appellant’s lay assertions alone are not sufficient to
establish a well-grounded claim in cases involving questions
of medical diagnosis or causation. Grottveit v. Brown,
5 Vet.App. 91 (1993).
The official certificate of death shows that the veteran was
found floating in a river on May 25, 1991. His drowning, at
the age of 41 years, was reported as of undetermined cause.
No other significant conditions contributing to death were
noted and an autopsy was not performed.
Under the law, a death of a veteran will be considered as
having been due to a service-connected disability when the
evidence establishes that such disability was either the
principal or a contributory cause of death. A determination
will be made by the exercise of sound judgment, without
recourse to speculation, after careful analysis of all the
facts and circumstances surrounding the death of the veteran,
including, particularly, autopsy reports. § 3.312.
In the instant case, it is argued that the veteran’s death by
drowning was a suicide brought on by depression from his
service-connected PTSD. In reviewing the evidence of record,
the Board notes that the veteran was evaluated and treated by
VA on numerous occasions from 1979 through 1989, primarily
for psychiatric problems. There was one notation (made by a
psychiatric technician) that the veteran reported suicidal
thoughts when seen at VA psychiatric services on July 8,
1987. However, a subsequent evaluation by a (VA)
psychiatrist later on the same day indicated that the veteran
denied any suicidal ideations. There are no other
references, either expressed or implied, that the veteran had
any suicidal ideations during his approximately 10 years of
psychiatric treatment, including during his last period of
hospitalization (VA) in March 1989.
The evidence of record indicates that the veteran generally
experienced increased symptomatology, including auditory
hallucinations, nightmares, flashbacks, depression and anger
when not taking his medications, but that he responded well
to them when taken on a regular basis. In fact, the March
1989 VA hospital summary report indicated that the veteran
realized the need to take his medication on a regular basis
and that when he did not, he would experience increased
symptomatology. However, contemplating suicide was never
shown to be one of the symptoms reported by the veteran
during a period of exacerbation.
The appellant has neither claimed nor does the evidentiary
record show any prior attempts by the veteran to commit
suicide. As noted earlier, the veteran was last hospitalized
at a VA medical facility in March 1989 because of increased
psychiatric symptoms after he stopped taking his medication.
He denied any suicidal ideations throughout his entire stay,
interacted in group therapy and one-on-one counseling and
responded well to medications. At the time of discharge, the
veteran was well stabilized and considered competent.
The Board finds nothing in the evidence of record to support
the appellant’s general assertions that the veteran’s death
in May 1991, was a suicide related to his service-connected
disabilities. Grottveit. The numerous VA medical records
for the approximately 10 years of psychiatric treatment
failed to disclose any evidence of suicidal tendencies on the
part of the veteran. While the Board is sympathetic to the
appellant’s situation, a finding by this Board that the
veteran’s death by drowning was related to his service-
connected psychiatric disability would be purely speculative,
particularly in light of the fact that the veteran was never
reported to have attempted suicide in the past and had
consistently denied suicidal ideations over the many years of
psychiatric treatment. Accordingly, it is the decision of
the Board that a well-grounded claim has not been presented.
ORDER
As a well-grounded claim of service-connection for the cause
of the veteran’s death has not been presented, the appeal is
dismissed.
BARBARA B. COPELAND
Member, Board of Veterans' Appeals
The Board of Veterans' Appeals Administrative Procedures
Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___
(1994), permits a proceeding instituted before the Board to
be assigned to an individual member of the Board for a
determination. This proceeding has been assigned to an
individual member of the Board.
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West
1991), a decision of the Board of Veterans' Appeals granting
less than the complete benefit, or benefits, sought on appeal
is appealable to the United States Court of Veterans Appeals
within 120 days from the date of mailing of notice of the
decision, provided that a Notice of Disagreement concerning
an issue which was before the Board was filed with the agency
of original jurisdiction on or after November 18, 1988.
Veterans' Judicial Review Act, Pub. L. No. 100-687, § 402
(1988). The date which appears on the face of this decision
constitutes the date of mailing and the copy of this decision
which you have received is your notice of the action taken on
your appeal by the Board of Veterans' Appeals.
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